Free speech or religious freedom: revisiting the Establishment Clause.

In the late 1980s and the early 1990s, it appeared that the Supreme Court was poised to change the law of the Constitution's Establishment Clause. In both Allegheny County v. American Civil Liberties Union (492 U.S. 573 (1989)) and Lee v. Weisman (505 U.S. 577 (1992)), four justices called for a radical revision. They argued that the Establishment Clause should be deemed violated only in cases where the government literally establishes a church or coerces religious participation.

In fact, after Lee there were five justices--Anthony Kennedy, William Rehnquist, Antonin Scalia, Clarence Thomas, and Byron White--who took this view. It seemed it would be only a matter of time before a case would come up allowing the justices to make their imprint on the law.

But then White resigned and two new justices were appointed--Stephen Breyer and Ruth Bader Ginsburg. They do not share the restrictive position. A dramatic change in the law of the Establishment Clause suddenly seemed unlikely.

Two recent High Court cases indicate, though, that there is a major change occurring, but not the one that was predicted. In Rosenberger v. Rector & Visitors of the University of Virginia, the Court held that the government could not deny funding to a religious student group and that providing it money would not violate the Establishment Clause. (115 S. Ct. 2510 (1995).) In Capitol Square Review and Advisory Board v. Pinette, the Court ruled that the government could not prevent a private group from constructing a cross in a public park and that permitting the placement of the cross would not violate the Establishment Clause. (115 S. Ct. 2440 (1995).)

Both cases present classic Establishment Clause questions: What kind of aid can the government give to a religious group, and what type of religious symbols can be placed on government property? The striking thing about both cases is that the Court treated them as being primarily about speech and not religion. In each case, the Court said that the government was impermissibly discriminating against religious speech. The Establishment Clause analysis was secondary and relatively perfunctory.

The Court's reconceptualization of religion questions as speech issues has important implications for litigation involving the Establishment Clause. Many government practices that have been traditionally deemed to violate this clause might be allowed under the Court's new approach, which forbids the government from discriminating against religious speech.

The Lemon Test

For the past 25 years, the Court has followed the test articulated in Lemon v. Kurtzman in Establishment Clause cases. (403 U.S. 602 (1971).) Under Lemon, the government violates the Establishment Clause in any of three circumstances. First, a law is unconstitutional if it does not have a secular purpose. Second, the primary effect of the law must be neither to advance nor inhibit religion. Finally, there must not be excessive government entanglement with religion.

In Allegheny County, Kennedy, in an opinion joined by Rehnquist, Scalia, and White, sharply criticized the Lemon test as unworkable in practice and unduly hostile to religion. Kennedy argued that the government should be found to violate the Establishment Clause only if it establishes a church of its own or if it coerces religious participation. Relatively little would violate the Establishment Clause under this approach. (492 U.S. 573, 655 (Kennedy, J., concurring in part and dissenting in part).)

Three years later, in Lee, the Court came even closer to overruling Lemon. The issue in Lee was the constitutionality of clergy-delivered prayers at public school graduations. By a 5-4 margin, the Court declared these prayers unconstitutional as a violation of the Establishment Clause. Scalia wrote a strong dissent. He was joined by Rehnquist, Thomas, and White. Scalia expressly called for the overruling of the Lemon test and the adoption of the approach that Kennedy advocated in Allegheny County.

Interestingly, however, Kennedy wrote the majority opinion prohibiting such prayers. He concluded that clergy-delivered prayers are inherently coercive. Although no student was required to attend graduation, it was an important event in students, lives and few students would feel comfortable leaving during the prayer.

In other words, Kennedy adhered to his Allegheny County approach. But unlike the dissent in Lee, Kennedy found impermissible coercion. The other four justices in the majority--Harry Blackmun, Sandra Day O'Connor, David Souter, and John Paul Stevens--wrote separately to emphasize their belief that the Establishment Clause is violated even without coercion.

Recent Decisions

Two cases this year--Rosenberger and Pinette--clearly demonstrate that Breyer and Ginsburg will not vote to discard the Lemon test nor adopt the conservative justices, approach to the Establishment Clause. The cases also indicate, however, that the conservative justices have found another way to achieve many of the same results that would follow an overruling of Lemon.

Rosenberger involved the question of whether the University of Virginia could deny funding to a student group that published a religious magazine. The university collects $14 a semester from each student for a student activities fund. The money is disbursed to various student groups. The university refused to allow money to be given to publish a student newspaper titled Wide Awake: A Christian Perspective of the University of Virginia. The university felt that funding an openly religious group would violate the Establishment Clause.

By a 5-4 vote, the Court concluded that denying funding to the newspaper violated its free speech rights and that permitting funding would not violate the Establishment Clause. Kennedy wrote the majority opinion, joined by O'Connor, Rehnquist, Scalia, and Thomas.

Kennedy began by arguing that denying funding was an permissible content-based restriction on speech. He said at the outset that "it is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys." (115 S. Ct. 2510, 2516.) Kennedy then concluded that Wide Awake was denied funding because its content was religious speech. (Id. at 2518.)

The majority opinion found that requiring the government to fund the Christian publication would not violate the Establishment Clause. The Court said the government was simply being "neutral" toward religion. It neither favored nor disfavored it. (Id. at 2523.)

Souter wrote a vehement dissent. He was joined by Breyer, Ginsburg, and Stevens. Souter argued that this was the first time the Court had ever allowed direct financial government aid to a religious group, let alone required it.

The dissent argued that this funding clearly violated the Establishment Clause and that "given the dispositive effect of the Establishment Clause's bar to funding the magazine, there should be no need to decide whether in the absence of this bar the University would violate the Free Speech Clause by limiting funding as it has done." (Id. at 2547 (Souter, J., dissenting).)

On the same day, the last of the 1995 term, the Court also decided Pinette. In that case, the Ku Klux Klan wished to erect a Latin cross in a plaza next to the Ohio state capitol. The Capitol Square Review and Advisory Board refused to allow this because it believed that placing a religious symbol on government property would violate the Establishment Clause.

By a 7-2 margin, but without a majority opinion, the Court concluded that excluding the symbol violated the group's free speech rights and that permitting the cross in the public park would not violate the Establishment Clause. Scalia wrote the plurality opinion and was joined by Kennedy, Rehnquist, and Thomas. Scalia argued that the refusal to permit the cross constituted impermissible discrimination against the speech because of its religious content.

O'Connor's concurring opinion was joined by Breyer and Souter. It stressed that allowing the cross would not be a symbolic endorsement of religion by the government because the cross was privately erected. Scalia's opinion, in contrast, argued against any evaluation of whether or not there was symbolic endorsement.

Ginsburg and Stevens dissented. They argued that religious symbols on government property violate the Establishment Clause.

Adverse Impact?

In both Rosenberger and Pinette, the Court ruled against Establishment Clause challenges by finding impermissible discrimination against religious speech. In other words, the Court conceptualized the cases as being primarily about freedom of speech and only secondarily about the Establishment Clause.

They were not the first cases to be decided this way. In Widmar v. Vincent, the Court held that the University of Missouri could not deny the use of school facilities to a student religious group. (454 U.S. 263 (1981).) The Court emphasized that it was impermissible content-based discrimination to exclude speech because of its religious message.

Similarly, Lamb's Chapel v. Center Moriches Union Free School District ruled that a school system that allowed community groups to use its facilities on evenings and weekends could not exclude a religious group. (113 S. Ct. 2141 (1993).) Like the two 1995 decisions, the Court in Lamb's Chapel concluded that the school system had violated the free speech rights of the religious group. Allowing it to use the facilities would not violate the Establishment Clause.

Lamb's Chapel, Rosenberger, and Pinette signal a major change in the way the Court is approaching religion questions. Any attempt by the government to exclude religion based on the Establishment Clause is likely to be challenged as impermissible content-based discrimination against religious speech. This has potentially far-reaching consequences. It could lead to the Court's permitting much more government involvement with religion than ever before.

For example, an unresolved issue is whether student-delivered prayers at public school graduations are permissible. (See, e.,g., Harris v. Joint School District No. 241, 115 S. Ct. 2604 (1995), vacating as moot 41 F.3d 447 (9th Cir. 1994) (declaring student prayer unconstitutional); Jones v. Clear Creek Independent School District, 977 F.2d 963 (5th Cir. 1992) (student-delivered prayer is permissible).)

When the Supreme Court ultimately addresses this issue, it might focus on whether there is any meaningful distinction between clergy-delivered prayers that were deemed to violate the Establishment Clause in Lee v. Weisman and student prayers. But in light of the recent cases, the Court might instead say that precluding student prayers is impermissible discrimination against the speech based on its content.

Indeed, most Establishment Clause issues might be reconceptualized as speech questions. The Court traditionally has limited government aid to parochial schools based on the tenets of the Establishment Clause. Might the Court now say that denying these schools funds impermissibly punishes them because of the content of their religious message?

Narrow Scope

The Establishment Clause expressly limits the government's involvement in one area as opposed to all others: religion. Inevitably, compliance with the clause means that the government is limited in its ability to support or benefit religious groups and messages compared with secular ones.

But if the government cannot distinguish between religious and nonreligious groups and messages, what will be left of the Establishment Clause?

Indeed, even without overruling Lemon, it appears that the Court has substantially narrowed the scope of the clause. Rosenberger and Pinette signal a major change as to how religion cases are likely to be litigated and decided in the future.

Erwin Chemerinsky is the Legion Lex Professor of Law at the University of Southern California Law Center in Los Angeles.